United States District Court, D. Colorado
Michael E. Hegarty, United States Magistrate Judge.
Prima Partners, LLC seeks to exclude the testimony of Robert
A. Woellner-an expert designated by Defendants Linda L.
Waterhouse, Estate of Stephen L. Waterhouse, and Stephen E.
Tisman (collectively “the Waterhouses”). I find
that four of Mr. Woellner's opinions improperly invade
the province of the jury and are not helpful to the
jury's resolution of Prima Partners' claims.
Specifically, Mr. Woellner may not testify as to the
Waterhouses' knowledge of mold growth, the parties'
agreement prior to closing, whether the Waterhouses promptly
addressed all moisture and mold issues, and the conditions in
the underlying property that are normal and typical. However,
I will allow Mr. Woellner to opine that certain conditions in
the property indicate limited exposure to moisture, that the
presence of a musty odor may be caused by the home being
closed to outdoor air for approximately ten months, and that
homeowners are generally unaware of unseen defects.
Accordingly, I grant in part and deny in part Prima
Partners' Motion to Exclude Disclosed Opinion Testimony
of Defendants' Expert Robert A. Woellner.
case arises out of Prima Partners' purchase of real
property from the Waterhouses. Am. Compl., ECF No. 35. Prima
Partners asserts the Waterhouses knowingly failed to disclose
an extensive mold problem in the lower level of the property,
a history of water intrusion issues, and a leak in the roof.
Id. ¶¶ 18-19. Prima Partners asserts
claims for breach of contract, false representation,
fraudulent concealment, attorney's fees, and exemplary
damages. Id. ¶¶ 21-53. I granted the
Waterhouses' Motion for Summary Judgment only as to the
fraud claims and only as they relate to the first two
defects. Order on Defs.' Mot. for Summ. J., ECF No. 84.
September 29, 2017, the Waterhouses served Mr. Woellner's
initial expert report. Initial Expert Report of Robert A.
Woellner, ECF No. 59-1. Mr. Woellner is an industrial
hygienist who regularly provides environmental assessments
and inspections for real property. Id. at 18. Mr.
Woellner's initial report reviews the evidence in this
case and opines that (1) various issues and imperfections in
the underlying residence are normal and typical for homes of
similar age and location, (2) he has seen no evidence that
the Waterhouses knew of asbestos in the home,  (3) he has seen
no evidence that the Waterhouses had knowledge of remaining
unmitigated mold growth in the home, (4) and all parties
agreed prior to closing that the roof needed to be replaced.
Id. at 3-9.
Waterhouses served Mr. Woellner's rebuttal report on
October 26, 2017. Rebuttal Expert Report of Robert A.
Woellner, ECF No. 59-2. In this report, Mr. Woellner rebuts
two of Prima Partners' expert reports. Id. Mr.
Woellner first disputes the experts' statements regarding
the property's condition. Id. at 3. He then
opines that it is common for unseen moisture and mold issues
to be unknown to homeowners, and he states that the presence
of a musty odor in a home that is closed for approximately
ten months out of the year is normal and typical.
Id. at 3-5. Lastly, he asserts that all moisture and
mold issues known to the Waterhouses were promptly addressed.
January 26, 2018, Prima Partners filed the present motion to
exclude Mr. Woellner from testifying. Mot. to Exclude, ECF
No. 59. Prima Partners contends the following opinions are
improper: (1) Mr. Woellner has seen no evidence indicating
the Waterhouses had knowledge of asbestos in the home, (2)
Mr. Woellner has seen no evidence demonstrating the
Waterhouses knew of unmitigated mold growth in the home, (3)
all parties agreed prior to closing that the roof needed to
be replaced, and (4) all moisture and mold issues known to
the Waterhouses were promptly addressed. Id. at 2.
Prima Partners contends these opinions invade the province of
the jury and are not true expert testimony. Id. at
response, the Waterhouses argue that Mr. Woellner is not
opining as to ultimate issues, because he states only that he
“has seen no evidence” of the Waterhouses'
knowledge, not that the Waterhouses actually lacked
knowledge. Id. at 3. Additionally, the Waterhouses
argue that Mr. Woellner is qualified based on his experience
to testify that it is common for homeowners to be unaware of
unseen mold issues. Id. at 4. Finally, the
Waterhouses assert that Mr. Woellner may permissibly offer
opinions on what defects are normal and typical for homes of
similar age, location, and construction. Id. at 6-9.
Prima Partners subsequently filed a reply brief. Reply in
Supp. of Mot. to Exclude, ECF No. 72.
Rule of Evidence 702 states, in pertinent part:
[i]f scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or
to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.
Evid. 702. As the rule makes clear, while required, it is not
sufficient that an expert be qualified to give opinions in a
particular subject area. Rather, courts must perform a
two-step analysis. 103 Investors I, L.P. v. Square D
Co., 470 F.3d 985, 990 (10th Cir. 2006). First, courts
determine whether the expert is qualified by
“knowledge, skill, experience, training, or education,
” id. (quoting Fed.R.Evid. 702), and whether
the testimony will assist the jury in understanding the
evidence or determining a fact in issue. See, e.g.,
United Telecomms., Inc. v. Am. Television &
Comm. Corp., 536 F.2d 1310, 1317 (10th Cir. 1976)
(“[E]xpert testimony is not necessary where the matter
in issue is such that the jury can be expected to draw the
correct inferences from the facts presented.”).
the Court must assess the specific proffered opinions for
relevance and reliability. See 103 Investors I,
L.P., 470 F.3d at 990; see also Fed. R. Evid.
702 (requiring that the testimony be “based upon
sufficient facts or data, ” be the “product of
reliable principles and methods, ” and reflect a
reliable application of “the principles and methods . .
. to the facts of the case”). Rule 702 “imposes
on the district court a gatekeeper function to ‘ensure
that any and all scientific testimony or evidence admitted is
not only relevant, but reliable.'” United
States v. Gabaldon, 389 F.3d 1090, 1098 (10th Cir. 2004)
(quoting Daubert v. Merrell Dow Pharms., Inc., 509
U.S. 579, 589 (1993)). To execute that function, the Court
must “assess the reasoning and methodology underlying
the expert's opinion, and determine whether it is both
scientifically valid and applicable to a particular set of
facts.” Dodge v. Cotter Corp., 328 F.3d 1212,
1221 (10th Cir. 2003) (citing Daubert, 509 U.S. at
592-93). When assessing reliability, “the court may
consider several nondispositive factors: (1) whether the
proffered theory can [be] and has been tested; (2) whether
the theory has been subject to peer review; (3) the known or
potential rate of error; and (4) the general acceptance of a
methodology in the relevant scientific community.”
103 Investors I, L.P., 470 F.3d at 990 (citing
Daubert, 509 U.S. at 593-94). These considerations
are not exhaustive. Rather, “the trial judge must have
considerable leeway in deciding in a particular case how to
go about determining whether particular expert testimony is
reliable.” Kumho Tire Co. v. Carmichael, 526
U.S. 137, 152 (1999). Ultimately, the test requires that the
expert “employs in the courtroom the same level of
intellectual rigor that characterizes the practice of any
expert in the relevant field.” Id.
the proponent of the challenged testimony has the burden of
establishing admissibility, its proffer is tested against the
standard of reliability, not correctness; a proponent need
only prove that “the witness has sufficient expertise
to choose and apply a methodology, that the methodology
applied was reliable, that sufficient facts and data as
required by the methodology were used and that the
methodology was otherwise reliably applied.” United
States v. Crabbe,556 F.Supp.2d 1217, 1221 (D. Colo.
2008) (citing Mitchell v. Gencorp Inc., 165 F.3d
778, 781 (10th Cir. 1999)). “[E]xclusion of expert
testimony under Rule 702 ‘is ...